Wednesday, February 16, 2011

New Conflict Rule for New York Courts

By Mike Dorf

Under a proposed new rule for the NY State courts, an elected judge would be ineligible to sit on cases in which a participating party or attorney has contributed $2500 or more to his or her election campaign in the prior two years. The rule would also forbid participating in cases in which parties, attorneys, and firms have collectively contributed $3500 or more. The comment period on the rule runs until the end of April. I'll get the ball rolling here.

Although I think this proposed reform is laudable, the $2500 threshold for individuals strikes me as arguably too high. Granted, it's way way way below the threshold for triggering due process concerns. In the Caperton case, Massey Energy's Don Blankenship had donated $3 million to the campaign of the judge who failed to recuse himself. That extraordinarily large contribution, Justice Kennedy said for the Court, made Caperton the rare case in which a campaign contribution created a due process violation. I'm glad to see that New York proposes to go well beyond what federal due process requires.

Why do I think the threshold is still too high? I'll also grant that it's hard to imagine that an otherwise honest judge would throw a case to reward a donor of a mere $2500, but things need not work exactly that way. Consider an example. Suppose that a hundred lawyers with similar caseloads--medical malpractice plaintiffs' lawyers, say, or white-collar criminal defense lawyers--each contribute $2499.99 to Judge Doe's election fund, hoping that Doe will be sympathetic to their cause in cases down the line. The rule would not be triggered but one could still expect Judge Doe to have at least the appearance of a financial conflict and perhaps an actual conflict.

Now one might think that this is no worse than what happens routinely when judges are elected or, for that matter, appointed, in a process that involves politics. The people who elect or appoint the judge do so in part because of what they know or suspect about the judge-candidate/nominee's views. Other things being equal, we know that CJ Roberts is more likely to be sympathetic to the perspective of the Chamber of Commerce position on any given issue than Justice Ginsburg is--not because CJ Roberts has taken money from the Chamber but simply because he's ideologically sympathetic to their viewpoint. And in fact, that's part of why President Bush nominated him (and conversely, why President Clinton nominated Justice Ginsburg) to the Court in the first place.

So why, one might ask, is it worse for judge candidates to take money from people who want to elect them? One answer is that the line of causation from contribution to judgment is more direct when it runs through campaign contributions than through general ideological sympathy. Another answer may be the lack of transparency. Most of the time most voters know next to nothing about candidates in judicial elections, but at least in states in which judges run for office with party endorsements, voters can use party affiliation as a rough proxy for ideology. (That's why, although I generally prefer an appointed judiciary to an elected one, if a state is going to have judicial elections, I think there is a good deal to be said for partisan rather than nonpartisan elections.) By contrast, even if campaign contributions are nominally public information, they likely won't be known to most voters.

Finally, I'd note that the $2500 threshold may have been set with an eye towards surviving scrutiny under the federal campaign finance cases. That's in the range of contribution limits that the Supreme Court has upheld. By contrast, in 2006, the Court in Randall v. Sorrellinvalidated campaign contribution limits on the order of $200-$400. To the extent that the 2002 holding in Republican Party of Minnesota v. Whitesubjects judicial elections to the same body of case law as executive and legislative elections, it's possible that the NY Administrative Board of the Courts thought it had to set a threshold well above the invalidated Randall v. Sorrell limits. But if so, that strikes me as mistaken. After all, the proposed new rule would not limit how much anyone can give to a candidate's campaign for judicial office. It would only require recusal if the threshold is exceeded should the contributor have a case before a successful candidate. The candidate would still get to keep the money.

Thus, my bottom line: I'm very happy to see this proposed new rule; I wish it were stricter.

21 comments:

I think the 1A campaign-finance interests implicated by this recusal law are much more weighty than you suggest. Although it's certainly true that donors remain free to engage in their 1A-protected contribution, the law imposes a penalty on their exercise of that right that vitiates the very purpose of the speech in the first place. Namely, because Donor A engaged in speech supporting Judge B's candidacy, Judge B is stripped of his ability to exercise his judicial powers in the set of cases that arguably matters most to Donor A. I think framing the issue in this way might have appealed to AMK in Caperton. Moreover, this notion of "penalizing" speech might get added traction after the AZ public-financing case, where the challengers' theory is that their speech is "penalized" when it triggers matching funds for their opponents. (Btw, I disagree w/ the application of the penalty theory to those facts -- because the supposed penalty is merely a subsidy of a third party -- but I do think it is colorable in this context, where the penalty is a distortion of the bench in cases that matter to the speaker.)

One hypothetical to make the point less abstract: it would surely be a 1A violation if Congress passed a law mandating that any time an entity publicly praised a Supreme Court justice, that Justice had to recuse in any case where the outcome could benefit the entity. (Think NRA and Scalia or NARAL and Ginsburg.) To be sure, the hypo is distinguishable in terms of the likelihood of bias, etc., but that just goes to the interest involved and the degree of tailoring -- it still demonstrates that 1A interests are plainly implicated where a recusal law is conditioned on protected speech.

But the only way in which this "speech" (personally, I don't care for the classification of the act of giving money or gifts as "speech") is being penalized is if you take a completely judicial realism based view. In that case, of course, the line between buying a result in a court case and what you call "speech" is very very thin.

Hash raises an interesting point. I agree that there could be cases in which the requirement of recusal would be an unfair penalty for speech; certainly the NRA/NARAL examples so qualify. But as Hash himself says, those are examples of penalizing pure speech, not campaign-contributions-as-speech. Given the obvious interest in avoiding corruption and its appearance implicated by the latter but not the former, at a minimum I would set the threshold for finding an impermissible penalty much higher in the contribution context than the pure speech context.

I'd also note that I disagree with what may (or may not) be an implicit premise of Hash's comment: that the only reason a person might give money to a judicial candidate is to promote results in cases to which one is himself going to be a party. Presumably many contributions go to judicial candidates for more idealistic reasons: People want judges who share their judicial philosophy and values applying the law to everyone. E.g., someone may give money to a judicial candidate who promises to be "tough on crime" expecting (and hoping!) that he himself will not be a defendant before that candidate-turned-judge, should she win election. The requirement of recusal doesn't nullify this general aspect of contributions.

$2500 might still be high enough that this isn't a major concern, but as the threshold gets lower wouldn't we expect to see attorneys or parties gaming judicial assignment by making threshold level contributions to various judges that they expect to be less favorable to their legal positions?

Not only does lowering the threshold make it less costly to engage in this kind of strategy, but it makes it less likely that the contribution will have any impact on the outcome of the election (i.e. helping the election of a candidate whose views you oppose).

Michael Yuri: Very very interesting point. Perhaps that could be handled with a waiver provision. Opposing counsel/clients could waive the strategic conflict. This would be tricky with multi-party litigation, I realize.

"Massey Energy's Don Blankenship had donated $3 million to the campaign of the judge who failed to recuse himself."

This is how the case is frequently described, and Kennedy's opinion does repeatedly use the term "campaign contributions," but the actual facts recounted in the Caperton decision involve $3 million in independent expenditures. (Blankenship made only the statutory maximum $1000 contribution to the judge's campaign).

Ignoring the ultimate outcome of the case, Caperton strikes me as a terribly written opinion for the way it carelessly blurs together the concepts of direct contributions and independent expenditures.

Yuri,1. Kennedy did not blur any lines. Here are the opening paragraphs of his opinion:______

In addition to contributing the $1,000 statutory maximum to Benjamin’s campaign committee, Blankenship donated almost $2.5 million to “And For The Sake Of The Kids,” a political organization formed under 26 U. S. C. §527. The §527 organization opposed McGraw and supported Benjamin. App. 672a–673a. Blankenship’s donations accounted for more than two-thirds of the total funds it raised. Id., at 150a. This was not all. Blankenship spent, in addition, just over $500,000 on independent expenditures—for direct mailings and letters soliciting donations as well as television and newspaper advertisements—“ ‘to support … Brent Benjamin.’ ” Id., at 184a, 186a, 200a (bold typeface omitted) (quoting Blankenship’s state campaign financial disclosure filings).

To provide some perspective, Blankenship’s $3 million in contributions were more than the total amount spent by all other Benjamin supporters and three times the amount spent by Benjamin’s own committee. Id., at 288a. Caperton contends that Blankenship spent $1 million more than the total amount spent by the campaign committees of both candidates combined. Brief for Petitioners 28.________

As you can see, he clearly understands the formal difference between direct campaign contributions, contributions to a 529 and "independent expenditures."

No where does Kennedy claim that $3M in campaign contributions were made.

2. Fortunately, Kennedy has the good sense to realize that what you call "blurring" is nothing more than formal distinctions with no substantive differences.

Mike -- I don't disagree that the penalty threshold for pure speech should be lower than for contributions, given the higher risk of quid pro quod corruption in the latter context. But that's immaterial to your original post and my response. You were trying to justify triggering the penalty for contributions at a lower amount than the permissible cap on contributions under Buckley/Sorrell. And that doesn't follow -- if $500 doesn't present enough of a risk of corruption to justify a ban, then it's hard to see why it does present enough of a risk to justify imposing the penalty of disqualification, once you recognize that the penalty triggers 1A scrutiny.

I also did not intend in any way to rely upon the supposed premise that you identified, since you are quite right that non-personal ideological commitments motivate the vast majority of donations. But that only reduces the degree of the penalty, not its nature. (Moreover, it suggests that the law is grossly underinclusive -- ideological contributions can give rise to quid pro quod corruption too, yet the law leaves that risk unregulated.)

Paul - recognizing that different judges will rule differently in cases based upon their honestly held jurisprudential philosophies is a far cry from adopting the judicial realist view that supporting a judge is purchasing a result in a given case. I know that Scalia's going to vote against Pike balancing in a Dormant Commerce Clause case and that Breyer's going to vote against a 2A claim, but supporting those judges based on that knowledge is not remotely akin to a quid pro quod bribe.

As for AMK's campaign-finance terminology in Caperton, you should probably re-read Citizens United (and Buckley) if you think the contribution/expenditure dichotomy is a "formal distinction with no substantive difference." In CU, AMK made blazingly clear that independent expenditures, unlike contributions, do not present a risk of quid pro quod corruption for campaign-finance purposes, yet in Caperton, he held that independent expenditures created a DP problem due to risk of bias. These positions are in significant tension -- if not flatly inconsistent -- which might explain why he called the expenditures in Caperton contributions, as if that would fool anyone (other than perhaps himself).

Though the fact section explains that only $1000 was actually a contribution to the judge's campaign, the rest of the opinion refers interchangeably to "contributions," "campaign constributions," and the $3 million.

Paul Scott: "No where does Kennedy claim that $3M in campaign contributions were made."

How about these sentences: "The basis for the motion was that the justice had received campaign contributions in an extraordinary amount from, and through the efforts of, the board chairman and principal officer of the corporation found liable for the damages." "Not every campaign contribution by a litigant or attorney creates a probability of bias that requires a judge's recusal, but this is an exceptional case.""Blankenship's campaign contributions—in comparison to the total amount contributed to the campaign, as well as the total amount spent in the election—had a significant and disproportionate influence on the electoral outcome.""The parties point to no other instance involving judicial campaign contributions that presents a potential for bias comparable to the circumstances in this case."

He's certainly not referring to the $1000, so at the very least he's referring to the $2.5M given to the 529 as "campaign contributions." Furthermore, he describes the entire $3 million as "contributions," in the very section of the opinion you quoted.

Justice Kennedy is not a stupid man. I'm perfectly sure he "understands the formal difference between direct campaign contributions, contributions to a 529 and 'independent expenditures.'" My point was that, outside of the fact section, this "formal difference" is not referenced and plays no role in the opinion.

2. Paul Scott: "Kennedy has the good sense to realize that what you call 'blurring' is nothing more than formal distinctions with no substantive differences."

Even if you think these are "formal distinctions with no substantive differences," that's not the way the law has treated them. These formal distinctions are hugely important in both judicial precedents and statutory provisions at both the state and federal level. (See, e.g., the proposed New York rule that Professor Dorf linked to, which applies only to direct campaign contributions, and thus wouldn't have required recusal under the facts of Caperton)

If Justice Kennedy wanted to sweep these distinctions aside he should have been clear and up front about it. On the other hand, if these distinctions are still meaningful, then Caperton is just an incredibly sloppy opinion. That's the blurring I'm complaining about.

1) Hash is right that AMK thinks the distinction between independent expenditures and campaign contributions is significant for purposes of direct restrictions on campaign finance;

2) Michael Yuri is right that in Caperton AMK does not treat this distinction as significant;

but

3) I don't think that means AMK is being inconsistent between Caperton and Citizens United. One might think that the Due Process Clause requires recusal based on the strong appearance of impropriety occasioned by (some) independent expenditures, even though such expenditures are First Amendment-protected against direct restriction.

4) Michael Yuri is right that the proposed NY rule would not require recusal based on independent expenditures, but perhaps it could do so without offending the First Amendment if I'm right in my proposed reconciliation of the cases.

5) Finally, I read Paul to be making mostly a normative point that many independent expenditures should be treated as campaign speech--a point that would require overruling Wisconsin Right to Life and parts of Citizens United, but certainly one that has much to be said for it.

You have correctly identified the only way to reconcile the positions, but I find it rather unpersuasive. If the Govt has no compelling interest under the 1A in regulating *independent* expenditures because they present no real risk of *quid pro quod corruption* -- which is the square holding of CU (and arguably Buckley itself) -- then what exactly is the appearance of impropriety that gives rise to a DP violation in Caperton? It can only be the sort of vague concerns about "influence" or "bias" that CU held don't even constitute a legitimate govt interest for 1A purposes when dealing with elected legislators. (Pp. 909-10.) But if concerns about "influence" and "bias" aren't even a legitimate interest for 1A purposes when dealing with elected legislators, how can they be an actual DP violation when dealing with elected judges?

The only answer would be if we're much, much more concerned about non-quid-pro-quod "influence" over elected judges than elected legislators. But since electing judges is constitutional -- much to the dismay of O'Connor, Paul Scott, and probably AMK -- then I'm not at all sure why that distinction is correct. After all, at least elected judges are subject to review and/or constrained to explain how their actions are consistent with law. Elected legislators are free to make unfettered policy decisions in secret back-room deals. For those reasons, I would think we should be far, far more concerned about elected legislators who are "influenced" or "biased." To put it bluntly, I'm much more likely to be deprived of my property and liberty because of undue influence by the far left on Harry Reid than on any elected progressive judge.

Moreover, I think that it's approaching absurd to believe that Congress doesn't even have a legitimate interest in preventing legislators from actually being "influenced" or "biased," but that it actually violates DP if there's a mere appearance of such "influence" or "bias" for an elected judge. Only AMK's veneration of the legal system could lead to the conclusion that the Constitution consigns us to having actually biased legislators while requiring that our judges be purer than Caesar's wife. Cf. Legal Services Corp. v. Velasquez.

Finally, if Paul was making a normative point, then it's one that AMK himself disagrees with, which makes Paul's defense of AMK's Caperton opinion somewhat odd. And, on the merits, it would require overruling, not just CU and WRTl, but also Bellotti and Buckley. It would also require explaining why paying for speech about an election is any different than paying for speech about any other policy issue or paying for speech in a newspaper. I can at least understand the argument that contributions have a conduct-aspect that justifies lesser scrutiny. But independent expenditures are pure speech, unless one takes the ridiculous position that paying for speech is less protected than speech itself.

Hashim, the difference is a legislator makes rules (laws) for everybody and a judge makes a judgement for two (or more parties). Judges need to be and appear to be unbiased against both parties while politicians are supposed to hold strong positions and be biased (i.e. support) certain policies and actors.

I agree with Yuri that the distinction between contributions and other forms of expression (such as independent expenditures) are muddy and Caperton is a somewhat sloppy decision. Also with Dorf, Hashim and Yuri that they are not distinctions without a difference, (however AMK may treat them in Caperton).

However, I agree with Hashim's point that it is ridiculous to say "paying for speech is less protected than speech itself" under the First Amendment and on the inherent "tension" between the distinctions under precedent.

Though my views are in a bit of flux on the question of campaign finance overall, (and generally support MORE free speech as opposed to less), I would support a lower contribution threshold as Prof. Dorf suggests for the reason pointed out by Doug (and others). Judges have a special responsibility under state bar canons and their unique duties to dispense justice in a manner that is impartial to all parties such that justifies the lower "appearance of impartiality" threshold, (which wasn't even a close call in my reading of the Caperton case).

Moreover, as pointed out by the excellent discussion above, at least with legislators you "know what you're getting." In this regard, I also agree with Dorf's perspective supporting "partisan" elections where elections are the norm.

Regardless of how the New York Rule flushes out, I think complete disclosure of larger contributors are more important than the exact amounts, (regardless of whether you are talking about judges, political Campaigns, or independent expenditure's on behalf of those campaigns), which is left intact by the Citizens United decision, (though I must admit I find Thomas' dissent expressing concern over retaliation by government or parties against those holding minority opinions intriguing). Of course, the Court's ruling in CU seems to indicate the court, at least for the meantime, is content on First Amendment grounds to disallow too much tinkering in the "laboratories of the federal government" that are the States on this issue, (at least with regard to regulation of unions, corporations, and non-profit organizations speech rights, as in my view it should be), but from the vigorous dissent this is clearly an area I see largely in flux (especially if Obama gets a couple more picks on the High Court!) Fascinating discussion guys! jp

P.S. One final word. I do agree with Prof Dorf and Paul Scott that the average citizen's knowledge of judicial candidates (and the law generally) supports the proposition of appointment of judges as a superior system over judicial elections. The State of Vermont has a non/bi-partisan commission which forwards candidates it deems qualified to the governor from which he must make choices to fill judicial vacancies. This seems to me to be a very workable system which avoids many of the pitfalls of judicial elections entirely, (with a check on extreme partisanship or corruption via the people's vote for the political branches from whom several members of the judicial nominating commission are chosen). Would that the State trusted its citizens with the right of Initiative. jp